663 F.Supp.3d 212
N.D.N.Y.2023Background:
- In September 2001 Michele Harris disappeared from the family property; no body or murder weapon was found and investigators focused on her husband, Calvin Harris.
- State Police and Tioga County DA Gerald Keene conducted a prolonged investigation (2001–2005+); first grand-jury indictment (2005) was dismissed in 2007 for improper grand-jury presentation.
- A second indictment (2007) produced convictions after multiple trials and appeals; the conviction was vacated on procedural grounds and, after two more trials (one hung jury, one bench acquittal), Harris was acquitted in 2016.
- Harris sued (2017) under 42 U.S.C. § 1983 and state law, alleging malicious prosecution, fabrication of evidence, conspiracy, Monell liability, and related claims against County, DA Keene, State Police investigators Mulvey and Andersen, and babysitter Barbara Thayer.
- On summary judgment the court: dismissed abandoned counts, Investigator Lester, Doe defendants, and the DA’s Office; denied summary judgment on malicious prosecution, fabrication, conspiracy, and municipal liability claims against specified defendants; declined to resolve qualified-immunity at summary judgment.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Abandoned / unopposed claims | Harris abandons certain counts | Defendants moved to dismiss those counts | Court dismissed Counts Three, Four, Six, Eight and Count Ten as abandoned |
| Accrual / timeliness of §1983 malicious prosecution | Harris: claim timely measured from final favorable termination (2016 acquittal) | State and County: some claims accrued earlier (e.g., after 2007 dismissal or when DA left office) | Court: claims tied to first indictment (2005) are time-barred; claims tied to the 2007 indictment accrue at the conclusive termination (2016 acquittal) and are timely |
| Prosecutorial immunity (absolute vs qualified) | Harris: Keene participated in pre-indictment investigative misconduct and is not absolutely immune for investigative acts | County: Keene entitled to absolute immunity for prosecutorial functions | Court: absolute immunity protects advocacy (grand jury/trial) but not necessarily pre‑indictment investigative acts; summary judgment on immunity denied as fact issues remain |
| Fabrication of evidence (§1983) | Harris: investigators manipulated blood photos, swabbed before photographing, and coerced witnesses; Thayer acted in concert with police | Defendants: no admissible proof of fabrication; probable cause independent of alleged fabrications | Court: factual disputes about fabrication and witness tampering preclude summary judgment; claim survives against Mulvey, Andersen, Keene, and Thayer |
| State-action re: private actor (Thayer) | Harris: Thayer was a willful participant in joint activity with police | Thayer: her acts were private, not state action | Court: disputed facts could support joint-action; Thayer not entitled to summary judgment on §1983 claims |
| Municipal liability (Monell) | Harris: County liable because DA Keene was final policymaker who participated in misconduct | County: no municipal policy or custom causing constitutional violation | Court: evidence that Keene (final policymaker) participated in alleged fabrication/coercion suffices to survive summary judgment |
Key Cases Cited
- Spak v. Phillips, 857 F.3d 458 (2d Cir. 2017) (when a prosecution is "conclusively" terminated for §1983 accrual depends on the particular charging instrument)
- Imbler v. Pachtman, 424 U.S. 409 (1976) (absolute prosecutorial immunity for advocacy functions)
- Buckley v. Fitzsimmons, 509 U.S. 259 (1993) (distinguishing prosecutor's investigatory acts from advocacy for immunity analysis)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) (summary judgment standard)
- Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978) (municipal liability requires policy or custom causing the violation)
- Ashley v. City of New York, 992 F.3d 128 (2d Cir. 2021) (elements of fabricated-evidence §1983 claim)
- Morse v. Fusto, 804 F.3d 538 (2d Cir. 2015) (liability when prosecutors knowingly create false or misleading evidence)
- Briscoe v. LaHue, 460 U.S. 325 (1983) (absolute immunity for witness testimony at trial)
- Rehberg v. Paulk, 566 U.S. 356 (2012) (grand jury witness immunity)
- Pearson v. Callahan, 555 U.S. 223 (2009) (qualified immunity framework)
- Saucier v. Katz, 533 U.S. 194 (2001) (qualified immunity two-step framework)